Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County Nos. FSB704962, FSB705017, FSB801154. David Cohn, Judge.
Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Meredith A. Strong, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
McKINSTER, J.
Defendant and appellant Alfred Freddie Molina appeals after he was sentenced to state prison in September 2010, for violations of probation in three felony drug cases. Defendant was originally convicted of these crimes in 2007 (two cases) and 2008 (the third case). Defendant’s sole complaint on appeal is that the trial court erred in calculating the presentence custody conduct credits he should have received, pursuant to Penal Code section 4019. Because defendant was sentenced after the effective date of an amendment to Penal Code section 4019, we agree with his contention and order that the abstract of judgment be amended to reflect additional presentence custody conduct credits.
We note that the record refers to defendant as Alfred Molina, Alfred Freddie Molina and Freddie Alfred Molina.
FACTS AND PROCEDURAL HISTORY
Case No. FSB704962. On December 10, 2007, defendant was charged in San Bernardino County with possession of a controlled substance. (Health & Saf. Code, § 11377, subd. (a).) On January 15, 2008, defendant pleaded guilty and was admitted to supervised probation for 36 months.
Case No. FSB705017. On December 12, 2007, defendant was charged with bringing controlled substances into a jail (Pen. Code, § 4573) and possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)). He pleaded guilty to the charge of bringing drugs into jail on January 15, 2008, the same date as he pleaded guilty in the first case. Again, he was admitted to 36 months’ probation.
Case No. FSB801154. On March 14, 2008, defendant was charged with a new offense, possession of a controlled substance. (Health & Saf. Code, § 11377, subd. (a).) On March 26, 2008, defendant again pleaded guilty, and was again placed on 36 months’ probation; on the same date, the trial court considered probation revocation proceedings in case Nos. FSB704962 and FSB705017. Defendant’s probation in both cases was reinstated, but the terms were modified to include the requirement that he serve 180 days in the county jail.
Revocation in 2010. In September 2010, the trial court held a hearing on the revocation of defendant’s probation. On September 14, 2010, defendant admitted he had violated various terms of his probation, including absconding from the program where he had been placed. The trial court terminated defendant’s probation and sentenced him to the middle base term of two years in case No. FSB704962, and concurrent two-year terms in case Nos. FSB705017 and FSB801154. A few days later, on September 24, 2010, the court convened a hearing to consider the presentence credits to which defendant was entitled against his state prison sentence.
Under Penal Code section 4019, a defendant sentenced to state prison is generally entitled to credit against the state prison sentence for all actual days spent in custody before the sentence, plus credits for good behavior and work program participation (good time/work time, or conduct credits) in a certain ratio. By an amendment effective on January 25, 2010, the Legislature changed the rate at which conduct credits could be earned. (Stats. 2009-2010, 3d Ex. Sess. 2009, ch. 28, § 50.)
All further statutory references are to the Penal Code unless otherwise indicated.
Section 4019 was amended again on September 28, 2010, by Senate Bill No. 76; the amendments were effective immediately. (Stats. 2009-2010, ch. 426, § 5.) We refer to pre-January 25, 2010 section 4019 as former section 4019, January 25, 2010 to September 27, 2010 section 4019 as amended section 4019, and post-September 28, 2010 section 4019 as current section 4019.
Here, the trial court calculated the actual custody days attributable to each of defendant’s cases, and awarded section 4019 conduct credits on a two-tiered basis, applying the ratio in former section 4019 to any days of actual custody occurring before the effective date of the amendment, and applying the enhanced ratio of credits under amended section 4019 for any actual custody days served on or after the effective date of the amendment.
Defendant now appeals, contending that the trial court erred in applying such a two-tier calculation to his presentence conduct credits.
ANALYSIS
Defendant Was Sentenced After the Amendment, and the Credits Should Therefore Have Been Calculated Under the Amended Statute
Before January 25, 2010, subdivisions (b) and (c) of former section 4019 provided that “for each six-day period in which a prisoner is confined in or committed to” a local facility, one day is deducted from the period of confinement for performing assigned labor and one day is deducted from the period of confinement for satisfactorily complying with the rules and regulations of the facility. Subdivision (f) of former section 4019 provided that “if all days are earned under this section, a term of six days will be deemed to have been served for every four days spent in actual custody.” This provision established a ratio of reduction for good behavior time and work time credits, not an “ ‘earn as you go’ ” scheme. (In re Walrath (1980) 106 Cal.App.3d 426, 431 [“The most reasonable reading of the statute is that the one-for-six-day provision was meant to be interpreted simply as a ratio”].)
Effective January 25, 2010, Senate Bill No. 18 amended section 4019 to provide for the accrual of presentence credits at twice the previous rate. Subdivisions (b)(1) and (c)(1) of amended section 4019 provide that one day of work credit and one day of conduct credit may be deducted for each four-day period of confinement or commitment. According to subdivision (f) of amended section 4019, “if all days are earned under this section, a term of four days will be deemed to have been served for every two days spent in actual custody....”
The amendment to section 4019 has raised questions whether it should be applied retroactively. That issue has engendered a split of authority among the Courts of Appeal. The California Supreme Court granted review of People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963, which held that the amendments applied retroactively, and People v. Rodriguez (2010) 183 Cal.App.4th 1, review granted June 9, 2010, S181808, which held that the amendments were not retroactive. Review was also granted in People v. Otubuah (2010) 184 Cal.App.4th 422 [Fourth Dist., Div. Two], review granted July 21, 2010, S184314, a decision of this court, also holding that the amendments were not retroactive.
However, the retroactivity of the amendments is not strictly at issue in this case. Defendant here was not sentenced until after the amendment became effective, so there is no question of “retroactivity.” Rather, the issue is how to calculate the credits properly.
Here, defendant’s criminal acts were committed, in each of his three cases, and he was admitted to probation, before the amendment to section 4019 became effective. His sentencing did not occur, however, until after it became effective. Therefore, defendant was required to be sentenced under the provision in effect at that time, i.e., the amended statute.
As noted, the court here used a two-tiered process for calculating defendant’s conduct custody credits, applying the old formula of accrual for actual custody time defendant had served before the effective date of the amendment, and applying the new formula only to the actual custody days defendant had served on or after the effective date of the amendment. This was error because section 4019 contains no provision for, and cannot be read to have specifically enacted, such a two-tiered division of the presentence custody credits. In other words, the former section 4019 was no longer valid at the time of defendant’s sentencing and, therefore, the trial court was unauthorized to apply the previous statute to defendant’s sentence.
Here, defendant’s credits varied somewhat from case to case. The court found that defendant had served 239 actual days in custody attributable to the first case (case No. FSB704962), 247 actual days in custody attributable to the second case (case No. FSB705017), and 199 actual days in custody attributable to the third case (case No. FSB801154). The court awarded him 82 days credit under the old formula and 53 under the new formula for the first case; 86 days under the old formula and 53 days under the new formula for the second case; and 62 days under the old formula and 53 days under the new formula for the third case.
For a discussion of credits calculation, see In re Marquez (2003) 30 Cal.4th 14, 24-26. Under the old formula, an inmate could earn credits only for each full four-day period of actual qualifying custody. Any remainder of less than four full days was discarded from the calculation. The number of full four-day periods is multiplied by two, to determine the amount of good time/work time conduct credits that may be earned. Similarly, under the new formula, an inmate may earn credits only for each full two-day period of actual qualifying custody. Any remainder of less than two full days is discarded from the calculation. Thus, the trial court improperly awarded 53 days of conduct credit on a supposed 53 days of post-January 25, 2010 actual custody. This was incorrect: 53/2=26 full two-day periods. 26 x 2 = 52, not 53.
Under the amended statute, however, defendant was entitled to have all his credits calculated under the new formula in each case. Thus, in the first case, defendant served 239 days of actual custody, although he spent 19 days with a program that did not qualify for custody credits. He therefore had 220 days of credit-qualifying time, or 110 full two-day periods of actual custody. He was entitled to 220 days of conduct credits in that case, rather than the 135 credit days he was awarded. In the second case, defendant had 247 days of actual custody, but again 19 days were in the non-credit-qualifying program. Defendant served 114 full two-day periods of qualifying custody, so he was entitled to 228 days of custody credits in the second case, rather than the 139 he had been awarded. In the third case, defendant served 199 days of actual custody, but only 180 days of credit-qualifying custody. He served 90 full two-day periods of actual qualifying custody time, so he was entitled to 180 days of presentence conduct credits in the third case, rather than the 115 he had been awarded.
We therefore order the judgment modified to award defendant an additional 85 days of presentence conduct credit in case No. FSB704962, for a total of 459 days of presentence credit (239 days actual, plus 220 days qualifying conduct credit), an additional 89 days of presentence conduct credit in the case No. FSB705017, for a total of 475 days of presentence credit (247 days actual, plus 228 days qualifying conduct credit), and an additional 65 days of credit in case No. FSB801154, for a total of 379 days of presentence credit (199 days actual, plus 180 days qualifying conduct credit).
DISPOSITION
The judgment is modified to award presentence credit as follows: Case No. FSB704962, 239 days actual custody time, plus 220 days presentence conduct credit, for a total of 459 days of presentence custody credit. Case No. FSB705017, 247 days actual custody time, plus 228 days presentence conduct credit, for a total of 475 days of presentence credit. Case No. FSB801154, 199 days actual custody time, plus 180 days presentence conduct credit, for a total of 379 days of presentence credit. The superior court clerk is directed to amend the sentencing minute order of September 24, 2010, and the abstracts of judgment to reflect the credits as stated here for each respective case. The superior court clerk is also directed to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. (§§ 1213, 1216.)
The judgment as thus modified is affirmed.
We concur: RAMIREZ, P.J., KING, J.